Mutiny on the Ulysses

Historical Trial Series by Eric Fryar

Part 2: Preparing for The Ulysses Trial

In 1800, federal authorities tried five sailors for mutiny in one of the most famous trials of its day. In a virtual replay of the Mutiny on the Bounty, the sailors claimed that they had acted in self-defense against the abuse and murderous threats by the captain. On both sides of this high-profile case were the best lawyers in the county. Would the sailors hang?

This is an excerpt from a forthcoming book by Eric Fryar.

Awaiting Trial

After the mutiny aboard the Ulysses on the Northwest Coast of America had been put down, seven of the mutineers, John Salter, John Carnes, Stephen Bruce, John Bullock, Edward Smith, Henry Hutchins and Edward Coffin, the sailors who had voted to continue the mutiny had all been turned over to the U.S. Consul in Canton and sent back to Boston aboard different ships. Carnes and Coffin arrived aboard the Eliza in late April 1800. When the Eliza reached Boston, the United States Marshal escorted the prisoners to the Boston Gaol (Jail). The Gaol was run by the city of Boston. In 1800, the federal government had no facilities in Boston—no jail, no courthouse, and only rented offices for the marshal and the clerk. The United States District of Massachusetts had an agreement with the city of Boston that allowed it to utilize the Old Colonial Courthouse on Court Street for its proceedings. The Massachusetts state legislature had passed a law in 1790 providing for federal prisoners to be incarcerated in the Boston Gaol.

Samuel Bradford and the Boston Gaol

The United States Marshal, Lt. Col. Samuel Bradford, was born on April 3, 1759, in Boston. Bradford was commissioned as the United States Marshal for the District of Massachusetts by President Washington on June 28, 1796. His duties consisted mainly in the inspection and seizure of ships in the Port of Boston engaged in smuggling. He was persuaded by his friend, the merchant Thomas H. Perkins, to start an auction business to dispose of the seized goods, a business that made Bradford quite wealthy. The Boston Gaol, which originally opened in 1635 as the prison for the entire Massachusetts Bay Colony, had been located in a succession of buildings. In 1800, the Gaol was in a relatively new building that had been erected in 1767 based on a design by colonial Governor Sir Francis Bernard. The Gaol was located off Court Street, immediately behind the Courthouse, and in the block bounded by School, Washington, and Tremont Streets. It had thick walls, small cells, and exceedingly small, iron-barred windows. According to contemporary reports, the building appeared as “a plain stone building of considerable strength,” located “in the rear of the court-house.” “The jail [was] a three-story building with corridors on the outside of the upper stories, in which were the prisoners confined for debt.” Prisoners were poorly provided for. In December 1797, the Massachusetts Charitable Society had voted to provide a blanket for each prisoner confined in Boston Gaol, and “as much fuel as will be necessary to keep them comfortable during the inclemency of the season.” The situation for federal prisoners was even worse. The Massachusetts legislature made no provision for the expense of keeping federal prisoners, nor did the United States. The jailkeeper, Oliver Hartshorn, petitioned the United States District Court for Massachusetts on June 8, 1795, seeking funds for the costs of incarcerating federal prisoners. He explained that no funds had been provided by either the state or federal governments and that he had been maintaining these prisoners at his own expense. Hartshorn was still the jailer when John Salter and his companions arrived in 1800.

Boston Courthouse

As each of the prisoners was escorted to the Gaol, he would have passed by the courthouse where he would soon be tried. Boston’s Old Colonial Courthouse was next to and immediately in front of the Gaol. The United States District Court would not have a courthouse of its own until 1933. The first session of that court in 1790 had been held at the Bunch of Grapes Tavern, from there the use of the Colonial Courthouse on Court Street was arranged with the city of Boston. That courthouse had been built in 1769. The Boston municipal courts would continue to hold court in that building until 1822. The United States District Court was permitted to utilize the courthouse when the municipal courts were not in session. Historian Caleb Snow described the building in 1828: “The Old Court House on the south side of Court-street, is a handsome building of brick, three stories high, and has on the roof an octagon cupola. On the lower floor are the offices of the United States District Marshal, and several private offices. In the second story, the floor of which is supported by pillars of the Tuscan order, are held the Circuit and District Courts of the U.S. for the Massachusetts District, and the office of the District Clerk. In the third story are convenient rooms for jurors, etc.” Other contemporary accounts are less flattering: “The County Court-House in Court Street is by no means an ornament to the town; it is small, inconvenient, and exposed to the noise of a very busy street.”

U.S. District Judge John Lowell

Presiding over the United States District Court for the District of Massachusetts was John Lowell, the United States District Judge. John Lowell was born on June 17, 1743, in Newburyport, Massachusetts. He graduated from Harvard College in 1760 and was admitted to the bar in 1763. He maintained a private legal practice in Newburyport from 1763 until 1775. He served as a Selectman in Newburyport during the early 1770s. At the beginning of the Revolutionary War in 1776, he served one year as a major in the Massachusetts militia. He moved to Boston in 1777 and continued his practice there until 1789. During that time, he served four terms in the Massachusetts House of Representatives. He was a delegate to the Massachusetts state constitutional convention in 1779. He is best remembered for authoring Article I of the state constitution which provided: “All men are born free and equal, and have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties….” Massachusetts courts would later hold that this provision outlawed slavery in Massachusetts. Lowell served as a member of the Continental Congress 1782-83 and as a member of the Massachusetts State Senate 1784-85. He was nominated by President George Washington on September 24, 1789, to be the United States District Judge for the newly-created United States District Court for the District of Massachusetts. He was confirmed by Senate on September 26, 1789. A portrait of John Lowell from about 1782 shows a thick-set, middle-aged man with a square face, almost no chin, a broad nose, thick eyebrows, large, dark eyes, and a head of thinning, gray hair.

Nathan Goodale

Handling all the paperwork and other business of the court was the United States District Clerk Nathan Goodale. Goodale was born in 1741 in Salem, Massachusetts. He graduated from Harvard College in 1759 and worked as a merchant in Salem. He was a loyalist before the war and signed the address approving Governor Thomas Hutchinson in 1774, but he later recanted. At the outbreak of hostilities, Goodale retired to Nantucket, worked as a merchant, and tried to stay neutral. When the federal courts were organized in 1789, Goodale was appointed by President George Washington to be the first United States District Clerk for the District of Massachusetts. The Boston Directory shows Goodale in 1800 working as the District Clerk out of an office on Tremont Street.

U.S. Attorney John Davis

Marshal Bradford had received the American Consul’s warrants for the arrests of John Carnes and Edward Coffin detailing the charges for which the prisoners had been arrested and the written statements of witnesses that the Consul had taken in Canton. The marshal delivered these to John Davis, the United States Attorney for the District of Massachusetts. John Davis was born on January 25, 1761, in Plymouth, Massachusetts. He graduated from Harvard College in 1781 and was admitted to the bar in 1786. In 1788, Davis was elected as a delegate to the Massachusetts Ratifying Convention for the United States Constitution where he would serve alongside Ames and Parsons. In addition to a busy law practice, Davis served in the Massachusetts State House of Representatives in the early 1790s and in the Massachusetts State Senate in 1795. From 1795 until 1796, he was the Comptroller for the United States Department of the Treasury. In 1796, President George Washington appointed Davis to be the United States Attorney for the District of Massachusetts, replacing Harrison Gray Otis who had been elected to Congress. A surviving portrait of John Davis from about 1830 shows a distinguished looking gentleman with a narrow, angular face, thin lips and nose, deep set dark eyes, and a head of long, thick, white hair. In 1800, however, Davis was only 39, and his hair was still dark.

Bonding Out of Jail

In order to be released from the Gaol, the prisoners had to make bail. The Eighth Amendment to the Constitution prohibits excessive bail, but the bail would still have been expensive. The idea of bail is to make sure that the defendant shows up for trial. To “make bail,” the defendants filed a bail bond, which was signed or vouched for by family and friends, respectable citizens. Edward Coffin was the first to be released. On May 5, 1800, Edward went with his attorney, with his father William Coffin, and with family friend Tristram Bernard before Boston Justice of the Peace Samuel Cooper to execute a bail bond. Marshal Bradford would have explained the charges to Judge Cooper and given him a copy of the arrest warrant. By this time, U.S. Attorney John Davis had committed to prosecuting the mutiny, and he may also have been present. The Judge set Edward’s bail at $1000, making William Coffin and Tristram Bernard each liable for half, on the condition that “Edward L. Coffin, a minor,” personally appear before the Circuit Court of the United States on June 2, 1800, “there and then to answer to such Matters and Things as shall be objected against him on Behalf of said United States, touching a complaint exhibited against him for assaulting, arresting & confining the Master of the Ship Ulysses on the high seas on board of which Ship the said Coffin was a Mariner.” On May 12, John Carnes executed a similar bond for $1000 with the prominent Boston merchant Thomas H. Perkins as his surety. Carnes had a powerful friend.

United States Circuit Court

In the Judiciary Act of 1789, Congress had organized the courts of the United States into three levels: The District Court, the Circuit Court, and the Supreme Court. The District Court was a trial court which primarily had responsibility for admiralty matters and cases involving property. Each District Court was presided over by a single judge, appointed for life by the President and confirmed by the Senate. Initially, there were thirteen federal districts, one for each state. The United States District Court for the District of Massachusetts alternated holding court each year between Boston and Salem. The Circuit Court, the intermediate court, was an appellate court for all decisions by the District Court. The Circuit Court also had original trial jurisdiction over several categories of more significant cases, including crimes against the United States. There were three federal circuits: Eastern, Middle, and Southern. The District of Massachusetts was in the Eastern Circuit. The Supreme Court primarily heard appeals from the Circuit Courts, but also from the state supreme courts, if the case involved an issue of federal law. In 1800, there were six Justices on the Supreme Court, and the Chief Justice was Oliver Ellsworth. There were no judges appointed to the Circuit Court. Sessions of the Circuit Court were conducted by one or two Supreme Court Justices plus one district court judge from that circuit. Each of the Supreme Court justices was assigned to one of the three circuits and was required to “ride circuit”—to travel to each of the various districts in their circuit twice a year and convene the Circuit Court. The Supreme Court Justices hated this responsibility, which kept them on the road most of the year.

As of June 2, 1800, no other defendants had arrived in Boston, and the whereabouts of the Ulysses was completely unknown. Without the testimony of David Lamb, U.S. Attorney Davis could not go before the Grand Jury to obtain an indictment. It became obvious that nothing would be done during the June term of the Circuit Court. Judge Lowell reset the trial for October 20, 1800, the beginning of the October term of the Circuit Court, when Supreme Court Justice William Cushing would arrive.

Supreme Court Justice William Cushing

Justice William Cushing was an Associate Justice of the United States Supreme Court and one of the original six Justices on the Supreme Court. He was appointed by George Washington and confirmed by the Senate on September 26, 1789. Cushing was born in Scituate, Massachusetts on March 1, 1732, the son of John Cushing, Jr. and grandson of John Cushing, Sr., who had both been judges on the Superior Court of Judicature, the highest court in colonial Massachusetts. William Cushing graduated from Harvard College in 1751 and became a member of the Boston bar in 1755. He practiced law first in Scituate and then in Pownalborough (present day Dresden, Maine). In 1772, he was appointed to replace his father on the Superior Court of Judicature by Massachusetts Colonial Governor Thomas Hutchinson. After the Revolutionary War broke out in 1775, the Massachusetts Provincial Congress began to govern the rebellious colony. The Provincial Congress reorganized the court system, created the Massachusetts Supreme Judicial Court, and appointed William Cushing to be the first sitting Chief Justice in 1777. In 1783, Cushing presided over the trial of Commonwealth v. Jennison, in which a slave named Quock Walker was suing for his freedom under the new Massachusetts constitution. Cushing instructed the jury that slave holding was contrary to the terms of the new state constitution: “there can be no such thing as perpetual servitude of a rational creature, unless his liberty is forfeited by some criminal conduct or given up by personal consent or contract.” Cushing continued as the Chief Justice of the Massachusetts Supreme Judicial Court until February 2, 1790, when he was seated as one of the first six justices on the United States Supreme Court.

On June 2, 1800, Judge Lowell reset bail. He raised John Carnes’ bail to $1500. John Carnes and Thomas H. Perkins executed a bond for that amount in federal court which was signed by U.S. District Clerk Goodale. The bond committed Carnes to personally appear before the Circuit Court in Boston on October 20, 1800 “to answer such Matters and Things as shall be objected against him on Behalf of said United States, particularly the Complaint of Joshua Loring [one of the owners of the Ulysses] for making a revolt in the Crew of the Ship Ulysses a vessel of the United States & confining David Lamb Captain of said Ship & a Citizen of the United States.”

There was no similar bond executed on behalf of Edward Coffin. Edward’s father and attorney had been very busy over the previous month lobbying U.S. Attorney Davis. Edward was a minor. He was led on by evil men that he naively trusted. He was shocked and frightened by the captain’s abandonment of the other ship’s boy. He had done nothing in the mutiny other than to vote to retain Salter as captain. Surely, this lad should not be prosecuted with the true mutineers. Davis relented. Edward Coffin would not be prosecuted and appears in no further records of the proceedings.

On July 7, 1800, the Pallas reached Salem with John Salter and Edward Smith. Marshal Bradford transported Salter and Smith the twenty-six miles to Boston under guard. There, on July 9, Judge Lowell set John Salter’s bail at $2000. John must have been concerned about this high bail amount. As his brother would later write, John arrived in Boston “without a Farthing to help it,” having lost all his property and having nothing to show for a two-year voyage except the ragged clothing he was wearing. John’s wife was able to survive, only because his friends and relations provided support and funds. However, John’s brother Richard, a merchant, and another merchant named Andrew Homer stood as John’s sureties, and he was released on bond. Edward Smith was also bonded on July 9, with Richard Salter has his surety.

Bruce arrived on the Despatch on July 17, he was released on bond on July 18, with Boston merchants Isaiah Doane and Abraham Town as his sureties. John Bullock must also have arrived in Boston in July or early August 1800. He too was arrested and taken before the Justice of the Peace to set his bond. Alone among the defendants, no record survives of John Bullock’s bond. Nevertheless, it is clear that John Bullock also was released on bond. A letter from James Lamb III in October 1800 makes reference to the prisoners being “all under bonds.”

The last crewmember who had been arrested, Henry Hutchins, arrived in Newport, Rhode Island in August. He would be tried separately in November 1800 in Providence along with four other crewmates. (They would all be acquitted.)

John Salter went home to his wife. The other defendants went home to their families or to the flophouses where they rented rooms. But not long after, they all got together and discussed their situation. They had by now learned that they could all hang for mutiny. They pooled what money they had and what they could get from family and friends and set out to find a lawyer. As the prisoners’ bonds indicate, they had some wealthy and well-placed friends, so they likely had their choice of available attorneys in Boston. They needed a really good one. They asked around everywhere and discovered that one of the most famous lawyers in the state, Theophilus Parsons, had only recently moved to Boston and set up a law office. Parsons had the reputation of having never lost a case. Parsons, himself, found that reputation ridiculous. When asked, he usually responded that he actually never had lost a case, but only because he had never had one; his clients, however, had lost many cases.

Theophilus Parsons

Early one morning in August 1800, five sailors appeared at the door of a lovely but somewhat modest house on Bromfield Lane in Boston which Theophilus Parsons and his family had recently rented. Parsons had his law office in a room on the first floor. Parsons brought in chairs from the dining room so that they could all sit in his office. The smoke in the room was thick. Parsons was a heavy smoker and believed that tobacco helped his concentration. Although he never smoked in court, he lit up his pipe every morning before breakfast and puffed on it continually through the day. The lawyer sat at his desk and listened to John Salter tell his story. John explained their situation and asked for Parsons’ help. Parsons quoted them his fee, which they paid immediately. Then, Parsons interviewed each of the defendants and took detailed notes of the relevant facts. This process certainly took all that day, perhaps more. Parsons was interested in everything—not just the mutiny but every aspect of the voyage, the working of the ship, the weather and appearance of the rocks off Tierra del Fuego, the trading with the Indians. He wanted to know everything they knew about David Lamb; everything about Charles Read; everything about themselves. As Daniel Webster would later write of Parsons: “As no cause is too great, none is too small for him. He knows the great benefit of understanding small circumstances. ‘Tis not enough to know for him that he has learned the leading points in a cause; he will know everything.” John could not understand why the lawyer seemed most interested in the names and whereabouts of other witnesses who could testify to the facts of the case. John did not yet understand that criminal defendants were not able to testify in the own defense.

When Parsons was finished with the questioning, he sent the five sailors away. Parsons did very little criminal work, but this case intrigued him. If ever a mutiny was justified, perhaps this one was. Parsons later called on Davis to make known his representation. Davis allowed Parsons to review the materials forwarded by the American Consul in Canton. This was a difficult case, but Parsons believed he was up to the challenge.

Theophilus Parsons was born on February 24, 1750, in Byfield, Massachusetts, about thirty-five miles north of Boston. Parsons was the third son of Rev. Moses Parsons and Susanna Davis. Moses Parsons was the minister of the Congregational Church in Byfield, a post he held for more than forty years. Theophilus Parsons entered Harvard College in 1765 and graduated in 1769. He then worked as a schoolmaster in Falmouth, Massachusetts (now Portland, Maine) from 1770 until 1773. While teaching, he studied law with Theophilus Bradberry, an eminent lawyer of Falmouth. After three years of study, he applied for admission to the bar. The committee reviewing his application objected that he was not qualified because admission to the bar required three years of exclusive legal studies. Parsons had been teaching and had only studied parttime. Parsons begged to be examined, which at last was agreed. After the examination, the committee voted unanimously to admit him to the bar. He began practice in Falmouth in 1774.

In I775, British soldiers burned Falmouth, and Parsons was forced to move back to Byfield. He had no clients and no business and had to rely on his parents for support. This event, Parsons would later say, was the most fortunate thing that ever happened to him. There living in his father’s house, he found former judge Edmund Trowbridge, who said he was escaping a smallpox epidemic in Boston, but was more likely lying low because of his loyalist sympathies. Judge Trowbridge was impressed by this intelligent and eager young lawyer and would become Parson’s teacher, mentor, and role model. Judge Trowbridge possessed what Parsons would later say was “not only the best but probably the only thoroughly good [law library] then in New England, and even in America.” It contained all the most valuable books on English law then in existence. Trowbridge was also widely regarded as the most learned lawyer in New England. The judge had his entire library packed up and moved from Cambridge to Byfield. Parsons spent his time completely immersed in study with Judge Trowbridge. Parsons took extensive notes. He read everything in Trowbridge’s library, made abstracts of the cases, briefed points of law, and drew up detailed summaries of various areas of the law. He was desperately afraid that he would never again have access to such a library. He kept these notes carefully organized. Years later, even after he had his own extensive library, he still used his notes as a primary resource in preparing for cases.

Parsons opened an office in Newburyport, Massachusetts in 1777, and in 1780 he married Elizabeth Greenleaf, the daughter of a judge. He built a large house on Green Street in Newburyport and lived there 20 years. That house still stands in Newburyport today. Parsons’ practice expanded quickly, and he was seen in courts all over Massachusetts and New England, often in New York, and occasionally before the United States Supreme Court. Parsons also dabbled in politics. He was a drafter of the Massachusetts state constitution. He was a delegate at the Massachusetts ratifying convention for the United States Constitution. He served several terms in the Massachusetts legislature. He was an important voice in the Federalist Party. But his chief interest was the law, and his reputation was as an outstanding trial lawyer.

In 1800, Parsons moved to Boston and opened his law office there. Parsons’ manner in court was described as “easy and familiar to the last degree. There was no studied beginning nor ending, nothing of the manner, or the tricks, or the graces of the orator, and no approach to them. His business was to persuade those twelve men of the truth of certain propositions; and he did his work in the most direct, the plainest, and the simplest way. His strength undoubtedly lay in his reasoning. But there was an actual, and I rather think a studied, absence of all appearance of eloquence, and even of technical logic.” Isaac Parker, a Chief Justice of the Massachusetts Supreme Judicial Court, was fond of telling a story about one of Parsons’ early trials. When it came Parsons’ time to speak, he put one foot on his chair, and with an elbow on his knee, leaned over, and began to talk about the case to the jury as a man might talk to his neighbor by the fireside. “Pretty soon,” said Parker, “I thought I understood him. He was winding that jury round his fingers. He made no show; he treated the case as if it were a simple affair, of which the conclusion was obvious and inevitable; and he did not talk long. He got the verdict at once; and after the jury were dismissed, one of them, whom I happened to know, came to me and said, ‘Who is this Mr. Parsons? He is not much of a lawyer, and don’t talk or look as if he would ever be one; but he seems to be a real good sort of man.’” Parsons’ arguments were always brief. He was never more than an hour and was less than half an hour more often than he was more. Daniel Webster, who saw Parsons in trial when Webster was still studying law, would later write of him: “His manner is steady, forcible, and perfectly perspicuous. He does not address the jury as a mechanical body to be put in motion by mechanical means. He appeals to them as men, and as having minds capable of receiving the ideas in his own. Of course, he never harangues. He is never stinted to say just so much on a point, and no more. He knows by the juror’s countenance, when he is convinced; and therefore, never disgusts him by arguing that of which he is already sensible, and which he knows it is impossible more fully to impress.” Although Parsons had a reputation for not being eloquent, Chief Justice Parker said: “Instances may be recollected when, in causes which required it, he has assailed the hearts of his hearers with as powerful appeals as were ever exhibited in the cause of misfortune or humanity.”

Parsons stood over six feet tall and was quite thin when he was young. By about 1800, he was described as “stout” although not fat. He was not attractive physically. One surviving portrait shows Parsons in his mid-forties, confident, serene, and perhaps a little sad. His face was round, with a pointed chin, full lips, large aquiline nose, prominent eyebrows, and intense eyes which were a blue-grey color with a hint of hazel. Parsons was almost completely bald by his early thirties and always wore a brown wig, which he rarely combed giving him a disheveled appearance. In 1804, Daniel Webster wrote in his journal his impressions of Theophilus Parsons: “Theophilus Parsons is now about fifty-five years old; of rather large stature, inclining a little to corpulency. His … complexion light. His face is not marked by any striking features, if we except his eyes. … He wears a blue coat and breeches, worsted hose, a brown wig, and a cocked hat. He has a penetrating eye, of an indescribable color. When, couched under a jutting eyebrow, it directs its beams into the face of a witness, he feels as if it looked into the inmost recesses of his soul.” It was said that Parsons could lock eyes with a witness and hold the stare for several minutes without blinking.

Parsons spent considerable time reflecting deeply on John Salter’s case. The defendants had clearly committed mutiny. There was no way to deny it. He would have to make a case that the conduct of the captain had justified what the sailors had done—essentially, that they were acting in self-defense. However, the story that John Salter told was troubling. John’s principal complaints against the captain were his drunkenness and his inability to navigate. John could not get over the fact that Captain Lamb had miscalculated the ship’s position and almost wrecked her on the rocks off Tierra del Feugo. John remained incensed that he had been stripped of his position merely for alerting the captain and crew to the danger. John maintained that his actions were necessary to save the ship. The document signed by the crew agreeing to the mutiny had listed the captain’s “being from Excess of Liquor Rendered totally Unable to Guide the Ship” as the primary motivation for the revolt. From Parson’s perspective, that was a weak case. Lamb was not a notorious drunk. Parsons had no witnesses to testify that Lamb had a habitual problem with alcohol. Regardless of what the first mate thought, navigation was the captain’s responsibility, and disciplining insubordinate officers was clearly the captain’s prerogative.

Parsons would have to “spin” the story to make the defense of justification work. All five of the sailors had told him that they were afraid of being abandoned on the Northwest Coast. The problem was that the document they signed barely mentioned that fact. It said they had been in fear for their lives but said nothing about the specific threats. It said nothing about the abandonment of the other two sailors. Nevertheless, Parsons was confident that he could prove that the captain had threatened the lives of his crew and that they had acted in fear for their lives. This would be the focus of the defense.

Justification was recognized as a defense, but the law was murky. Sir William Blackstone’s Commentaries on the Laws of England, published in 1765 and the most popular and widely used law treatise in the United States at the time of the trial, stated: “Self-defence therefore as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society. In the English law particularly it is held an excuse for breaches of the peace, nay even for homicide itself: but care must be taken that the resistance does not exceed the bounds of mere defence and prevention; for then the defender would himself become an aggressor.” Parsons’ clients had acted believing that Captain Lamb intended to leave one or more of the crew on the Northwest Coast, which would have meant sure death. But did the act of mutiny go beyond mere “defence and prevention?” Did the defendants become the aggressors? This would be a close call. The jury would need to sympathize with the sailors. Parsons would have to bring home to the jury that the sailors’ fear of the captain was real, palpable, and reasonable.

Fisher Ames

Here Parsons was not sure that his style of trying cases was necessarily the best to get an acquittal. He needed to appeal to the hearts of the jury as well as to their heads. His clients also needed a lawyer who was both eloquent and skillful in manipulating the emotions. He could think of none better than his good friend Fisher Ames, recently retired from Congress and now practicing law full time. Parsons wrote to Ames, offered to split his fee, and requested that Ames join him as co-counsel on the case. Ames agreed.

Fisher Ames was born in Dedham, Massachusetts, nine miles southwest of Boston, on April 19, 1758. Ames was the son of Dr. Nathaniel Ames, an editor of almanacs, physician, astronomer, innkeeper, versifier, and local seer. Fisher’s mother managed the tavern. Nathaniel Ames died in 1764 leaving four sons and a daughter. Fisher, the youngest child, was only six years old. His mother Deborah Fisher Ames, despite the loss of most of the family’s income, saw to it that Fisher received an excellent education. Ames entered Harvard College at the age of twelve. While at college, after considering the ministry, Ames decided to study law. He graduated from Harvard in 1774 at the age of 16. Because of family finances, however, he was compelled to teach school for five years and help his mother tend the tavern. In 1779, Ames began to study law in the office of William Tudor, who had been a student of John Adams and had recently served as Judge Advocate General in Washington’s Army. Ames was admitted to the bar in 1781. He operated his law practice out of the first floor of the Ames Tavern. Ames attracted cases in Dedham, in Boston, and throughout the state. He became known as a trial attorney of unusual eloquence.

Ames was attractive in both his physical appearance and his personality. About middle height, well-proportioned, and erect, he had pleasant face, even handsome. A surviving portrait shows a young man in his prime—deep blue eyes, strong chin, long, thin nose, thick eyebrows, and a high forehead. He had a dignified bearing.

In the fall of 1787, Ames was chosen to represent Dedham in the Ratifying Convention for the Federal Constitution. Opposition to the new Constitution was intense. In Massachusetts, one particularly hot issue was biennial, as opposed to annual, elections of Congressmen. Ames made a speech in favor of biennial elections, which was published and widely read. This good-looking, well-spoken, young gentleman came to the attention of political leaders in Massachusetts and was enticed to pursue a political career. In 1788, Ames won election to the House of Representatives in the First Congress, narrowly defeating Samuel Adams. As a member of the First Congress, Ames pushed hard for the protective tariffs and other legislation that would help launch the Golden Age for American shipping. He railed against opponents of these measures as being from the land of “negroes, debts, and luxury, but neither trade nor credit, nor cash, nor the habit of industry, or of submission to a rigid execution of law.” Although he was only in his early thirties, Ames quickly became one of the most important leaders of the Federalist party and was a member of the so-called “Essex Junto,” a powerful group of New England lawyers, merchants, and politicians who were among the strongest voices inside the Federalist Party. Parsons was also a member, as was the judge, John Lowell. Ames was re-elected to Congress in 1790, 1792, and 1794.

By both friends and enemies, Ames was considered one of the best orators of his day. His biographer would write that Ames’ speeches “had the power to enlighten and persuade, to move, to please, to charm, to astonish.” According to a contemporary account: “Never using notes, he would start a speech calmly and informally. But, as he approached the heart of his subject, he would throw back his head … and increase the pace and emphasis of his delivery to the accompaniment of dramatic tonal effects and sweeping gestures. The climax of his speech was always a major histrionic effort. His material was well organized, and his vocabulary had variety and range, but sometimes, heated with violent emotion, he would sacrifice logic for melodrama.” Timothy Dwight, a sympathetic observer of Ames, thought that Ames sometimes laid it on too thick: “His imagination was perhaps too brilliant and too rich. It can hardly be said that any of the pictures which it drew were ill-drawn or out of place; yet it might, I think, be truly said, that the gallery was crowded.” Detractors called him the “colossus of the monocrats” and “Hamilton’s gladiator.”

Ames’s most famous speech in Congress was in 1796 in favor of the Jay Treaty. It contained 12,000 words and filled twenty-four pages of the Annals of Congress. According to Dr. Joseph Preistley, who was present, Ames “addressed himself to every faculty of the mind, and awakened every feeling and emotion of the heart. The effect was absolute enchantment.” The vice president, John Adams, who watched from the gallery and was seldom given to excess emotion, declared that Ames “made an impression that terrified the hardiest and will never be forgotten.” “My God, how great he is!” exclaimed Supreme Court Justice James Iredell, who was sitting next to Adams. “Tears enough were shed,” Adams wrote to his wife Abigail, “Not a dry eye, I believe, in the House except some of the Jackasses who had occasioned the necessity of the oratory.”

Ames was frequently ill and retired from Congress in 1797 due to poor health. Ames had continued to practice law while in Congress and afterward worked full time at it, but he continued to be sickly and found the demands of practice taxing. The case of The Ulysses would be one of his last legal matters.

The Indictment

On August 2, 1800, the Ulysses and Captain Lamb finally returned to Boston after a harrowing voyage in which the ship was almost lost in a typhoon. Lamb immediately went to call on John Davis to determine what was being done to prosecute the mutineers who had taken his ship. Davis convened the Grand Jury, a group of 24 men who would decide whether the evidence was sufficient to indict the defendants. Captain Lamb testified before the Grand Jury. Theophilus Parsons and Fisher Ames, with their clients, observed the proceedings but were powerless to affect the outcome. John Davis drafted the indictment, of which the Grand Jury voted in favor. The indictment was signed by Grand Jury foreman Jeremiah Smith Boris and certified a “True Bill.” The indictment charged the defendants with “feloniously confining the master of the Ulysses and endeavoring to excite a revolt in the ship.”

Harrison Gray Otis

Getting the indictment was never in doubt, but securing a conviction in a jury trial was another matter. John Davis was very conscious of the prowess of the two lawyers who would be facing him at trial. Theophilus Parsons and Fisher Ames were both famous and formidable. Davis felt outgunned. Davis reached out to Massachusetts Congressman Harrison Gray Otis. Otis had occupied the position of Massachusetts U.S. Attorney immediately prior to Davis and had built his own reputation as an aggressive and effective prosecutor. Davis hoped that Otis might help level the playing field.

Harrison Gray Otis was born in Boston on October 8, 1765, to Samuel Allyne Otis and Elizabeth Gray. Otis’ uncle was the colonial leader and rebel activist James Otis. His aunt was Mercy Otis Warren, a well-known poet. His father was a politician and served as a representative in the Massachusetts legislature, as a delegate to the Massachusetts state constitutional convention, and as the Massachusetts representative in the Continental Congress; and he would later serve twenty-five years as the first Secretary of the United States Senate. Samuel Otis would hold the Bible on which George Washington would take the oath of office as the first President of the United States. Harrison Gray Otis graduated from Harvard College in 1783, was admitted to the bar in 1786, and began his practice in Boston. As a young lawyer, Otis also studied under Judge Trowbridge, Parsons’ mentor. In 1790, he married Sally Foster the daughter of wealthy Boston merchant William Foster. They would have six children. In 1794, he was elected to the state legislature. In 1796, he was appointed by President George Washington to be the United States Attorney for the District of Massachusetts. Harrison Gray Otis was elected in 1796 to replace Fisher Ames in the Congress. He resigned the office of U.S. Attorney to serve in Congress and was replaced by John Davis. Otis served as a United States Congressman from 1797 until 1801.

Otis was intrigued by the case and excited by the competition. He agreed to take time out from his legislative duties to volunteer to try the case as lead counsel. In 1800, Otis was 35 years old and in his prime. A portrait of a somewhat older Otis shows a handsome gentleman with a strong, square chin, a long, pointed nose, beautiful green eyes, and a full head of brown hair. He was known as a powerful orator and a trial lawyer of exceptional talent. Theophilus Parsons Jr., who had had the opportunity to watch Otis try his last case, later described Otis in trial: “The winning music of his voice made the hearer reluctant to lose a word; the flow of his language, which was as charmingly constructed and cadenced as if it had all been carefully written by a practiced writer; and the persuasive logic, which led you along almost unconsciously until you stood in the very position in which he would place you—in each and all of these he was unrivalled.”

Arraignment

In late August 1800, shortly after the indictment was handed down by the Grand Jury, Parsons and Ames appeared in court before Judge Lowell with their clients for the arraignment. Otis and Davis were present. The five defendants were escorted to the prisoners’ dock by Marshal Bradford. United States Clerk Nathan Goodale rose and took in hand the one-page indictment, the original of which, in John Davis’s messy handwriting, survives in the National Archives. Goodale addressed the prisoners: “John Salter, John Carnes, Stephen Bruce, Edward Smith, John Bullock, stand, raise your right hand, and hear the indictment against you.” The prisoners stood and raised their right hands. The attorneys also rose.

The clerk began slowly and spoke clearly and with emphasis:

United States Massachusetts District: AKA Circuit Court of the United States, begun and holden at Boston, in and within the District of Massachusetts on the twentieth day of October in the year of our Lord One thousand and Eight hundred—The Jurors of the United States in, for, and within said District of Massachusetts on their Oath present that John Salter, Mariner, John Carnes, the second of that name, Mariner, Stephen Bruce Jr., Mariner, Edward Smith, Mariner and John Bullock, Mariner, all of Boston in said District on the Thirtieth day of April in the year of our Lord One thousand seven hundred and ninety nine, with force and arms upon the high seas, out of the jurisdiction of any particular State, and near the North West Coast of America, these being Seamen in and on board a certain Ship or vessel called the Ulysses belonging and appertaining to certain Citizens of the United States aforesaid, where of David Lamb, a citizen of the said United States, was Master, unlawfully and feloniously did confine said David Lamb then and there being [captain of the Ulysses], a vessel as aforesaid, and endeavored to make a revolt in said Ship or vessel against the peace and dignity of the United States aforesaid, and against the form of the Statute of the United States in such case made and provided.

The clerk paused. “John Salter, how do you plead? Guilty or Not Guilty?”

Salter cleared his throat and stated emphatically: “Not Guilty.”

“How would you be tried?”

“By God and my country.” This signified that Salter was demanding a jury trial.

Goodale replied, “Then may God send you a good deliverance.”

The clerk asked the same questions to each of the defendants in turn, and each replied, “Not Guilty” and demanded a jury trial

The indictment was short and general, sparce on facts, and did not even clearly state the statutes under which the defendants were being charged. Later federal case law would require considerable specific detail regarding the offenses charged, but in 1800 this short, general document was deemed sufficient. This would have been the time for Parsons and Ames to challenge the indictment. Neither did so.

During September 1800, Parsons did most of the legwork in Boston. By mid-August, Salter had re-established contact with his shipmates David Hemmenway, Bart Jones, Henry Hutchins, John Randall, and John Amos, all sailors aboard the Ulysses who had all been indicted in Rhode Island but returned to Boston under bond. At least one other crewmember, who had not been indicted, was also in Boston and was willing to testify. Parsons interviewed these sailors and got commitments from them to stay in town and to testify at trial. He took the depositions (sworn written statements) of William Sturgis and of at least one other member of the Ulysses crew, both of whom were about to sail. Sturgis had been a seventeen-year-old member of the Eliza crew, who had served as the first mate of the Ulysses after the mutiny was put down.

All four of the lawyers, Davis and Otis for the prosecution, and Ames and Parsons for the defense, worked hard in October 1800 preparing for this important trial. Ames and Parsons were trying to save the lives of their clients, whom they believed to be good men who had only done what they thought was right and necessary. To Davis and Otis, this was also an extremely important case. Mutiny was a serious business. The safety of the ship and its crew and the commercial success of the voyage all depended upon the ability of the captain to control his ship. Everything a sailing ship did involved a complex set of actions performed by a dozen men with perfect timing. A captain’s ability to operate a sailing ship depended on the unquestioning obedience of the entire crew. The crew’s obedience was based on custom and enforced by the law. No captain had the ability to maintain discipline on his ship if the crew felt free to revolt. So, the crew of the Ulysses felt their captain was a tyrant. So, what if he was? Davis and Otis had certainly heard stories of captains who were worse. If this crew was able to flout its legal obligations and depose its captain with impunity, what ship’s captain would be safe? Davis and Otis would push for the death penalty. They recognized that it might be difficult to convince the judges on this point. But they felt that their duty to the law and to the nation compelled them to try to set the starkest example possible that mutiny was not to be tolerated.

Justice Cushing arrived in Boston in October 1800. On October 20, he and Judge Lowell convened the United States Circuit Court for the Eastern Circuit. They had a busy docket with several criminal matters, cases involving insurance claims, breach of contract, and collection of debts, and a maritime prize claim. United States v. John Salter, et al. was not the first case on the docket. Time was precious in the Circuit Court, and cases were disposed of with incredible speed. It was not unusual to complete two or more trials, soup to nuts, in a single day. The case of the Ulysses mutiny, however, would be different. Both judges had read the indictment, were aware of who the lawyers were, and cleared their docket to prepare for this important trial.

The Trial of the Ulysses Mutiny

The trial was set to begin at 9 a.m. on Friday morning, October 24, 1800. John Salter, John Carnes, Stephen Bruce, John Bullock, and Edward Smith got to the Courthouse early with their families and were waiting on the street outside when they saw Theophilus Parsons and Fisher Ames approaching. Parsons was deep in thought. Neither man spoke to the other. Parsons was carrying a sheaf of papers under one arm. The defendants knew that their lawyer had a reputation for being extremely well prepared for every case. Parsons always carried lots of papers. Every legal issue had been carefully researched in his large library; every fact was notated. Parsons rarely consulted these notes. He had a prodigious memory. He could recall obscure points of law and precedents better than any other lawyer of his day. He did sometimes have trouble remembering the names of cases that he cited, but they were there in his notes always at his fingertips. Ames was carrying only his walking stick that morning. He also had an impressive memory and was famous for his ability to speak for hours without notes.

The defendants greeted their attorneys. They walked upstairs to the second-floor courtroom and entered together. United States Marshal Samuel Bradford directed the defendants to sit in the prisoners’ dock. The two lawyers proceeded to counsel table. Parsons began to organize his stacks of papers. The two prosecuting attorneys, Harrison Gray Otis and John Davis, were already in the courtroom, seated at the next table, and had their own stacks of papers neatly organized on the table in front of them. The lawyers were all similarly dressed—dark woolen coats, starched linen shirts, velvet waist coats, well-fitted breeches that came down just below the knee, knee stockings, and low-heeled, black shoes with pointed toes and silver buckles. Parsons tended to be careless about his dress, and his wife always took responsibility for how he looked when he went to court. None of the lawyers wore a powdered wig. By 1800, these were out of fashion. All the lawyers had short, cropped hair, except Parsons who wore a short brown wig to hide the fact that he was almost completely bald. The prisoners had worn their best clothes, likely the only decent outfit each of them owned. Most of their clothes were suitable only on board a ship, but each had at least one outfit for shore leave, church, and formal occasions. These would have been simple light-colored jackets, white cotton shirts, and loose-fitting woolen trousers.

The families went to sit in the gallery among the curious spectators that were continuing to file in. Men that had been called for jury duty were also entering the courtroom. The Marshal directed them to sit in a segregated section of the gallery and wait.

Nathan Goodale, the Clerk of the Court, loudly announced, “Oyez, Oyez, Oyez! The United States Circuit Court is now in session. God save the United States of America and this Honorable Court.” Everyone in the courtroom rose. Justice Cushing shuffled in and took his seat at the bench. Judge Lowell followed and sat down beside him. Both judges were dressed in long, black robes. Justice Cushing was wearing a full, powdered, white wig—an affectation he maintained in court his entire life, even though none the other Justices on the Supreme Court did so. Justice Cushing called the case United States v. John Salter, et al. Both the prosecution and the defense announced that they were ready to proceed.

Motion for Separate Trial

Ames and Parsons represented all five of the prisoners, but they owed a duty to zealously represent the interests of each one. It had occurred to the lawyers that if any of their clients were going to be found guilty, it would surely be John Salter. He was the true instigator of the mutiny. He was the only one who had had a running conflict with Captain Lamb. He was the one who had lobbied the crew to depose the captain. He was the one who had drawn up the paper that the crew signed. Carnes, Bruce, Bullock, and Smith were impressionable young men who had merely followed Salter. The prosecution was trying all five of them together because it would be easier to get a conviction of the other four if they were grouped together with Salter. Ames and Parsons had to try and find a way to have Salter tried separately from the other four.

Justice Cushing indicated to the courtroom that all could be seated. Parsons remained standing.

“Your Honor, before the jury is seated, I wish to move on behalf of the prisoner John Salter that he be granted a separate trial.”

“Brother Parsons, what is the basis for your motion.” Until the early twentieth century, judges and lawyers usually referred to other lawyers (their “brothers of the bar”) in court as “Brother.”

“Your honor, Mr. Salter is charged with a felony and is at jeopardy of his life. The law permits to such a defendant the right to make peremptory challenges to the jury.” Peremptory challenges means the right to strike a prospective juror off the panel without stating a reason. This argument was pretty weak. All the defendants were charged with the same crimes. They were all at risk for their lives.

However, Parson’s motion struck at an issue that had been bothering Justice Cushing about this case for some time. The defendants were charged with mutiny—“revolt”—on an American ship on the high seas. Section 8 of the 1790 Crimes Act provided that “if any seaman … shall make a revolt in a ship; every such offender shall be deemed, taken and adjudged a pirate and felon, and being thereof convicted, shall suffer death….” However, Section 12 of the same statute provided that “if any seaman shall confine the master of any ship or other vessel, or endeavour to make a revolt in such ship; such person or persons so offending, and being thereof convicted, shall be imprisoned not exceeding three years, and fined not exceeding one thousand dollars.” The prisoners had been charged under both sections of the statute. Yet, in this case, no one had been killed, no one had been hurt, no property had been stolen or destroyed. The crew had continued the journey in an orderly manner and otherwise acted in the interests of the owners. The crew returned to their duty, and the captain was reinstated, after only a short period of time, and the ringleaders had been apprehended without incident. Besides, there seemed to be some question as to whether the crew had good reason for removing the captain. This just didn’t seem like a case in which someone should lose his life if convicted. Cushing had made up his mind that this was not a capital case.

“Brother Parsons, your motion is overruled. The thirtieth section of the Act of 1790 restricts the privilege of peremptory challenges to capital cases. The Court views the charges in the indictment as properly stating an offense solely under the twelfth section of that Act, which is neither a felony nor punishable by death.”

Parsons and Ames were stunned. By limiting the prosecution to Section 12 of the Act, the Court, on its own initiative, had taken the death penalty off the table. The chief objective of the defense, to make sure that the defendants avoided the gallows, had already been achieved before the trial had even begun. The prosecution was disappointed, but they could not have been completely surprised. They had anticipated that convincing the court to impose the death penalty in this case would be a tall order. That is why Davis had drawn the indictment somewhat ambiguously so as to charge the defendants under both the greater and lesser crimes in the statute.

Cushing’s reasoning was sound. The criminal conduct under Section 8 was to “make a revolt.” The criminal conduct under Section 12 was to “endeavor to make a revolt.” The indictment charged the defendants with “endeavoring to excite a revolt.” This language did not exactly track either section of the statute, but it was much closer to Section 12. The defendants had not been charged with making a revolt. It didn’t matter that they did, in fact, make a revolt. It mattered what the indictment said. Parsons was surely kicking himself for not having thought of that first.

Jury Selection

Twelve prospective jurors were then called up from where they were seated in the gallery and directed to the jury box. Each of the jurors was a voting citizen of Boston or the surrounding towns, a property owner. In other words, they were in a different social class from the prisoners and had definite opinions about a sailor’s place on board ship. But most of them would have known sailors. All of them would have known of the hard life that sailors lived. Each of them would have been terrified at the dangers that sailors routinely faced, particularly being stranded in a strange land among savages. None of them would have approved of Captain Lamb’s treatment of his crew. In other words, they were not necessarily unsympathetic to the case that the defendants intended to put forth.

There being no peremptory challenges, a juror could only be excused for cause—a financial or personal interest in the matter or evident bias. Each of the jurors was then briefly questioned by Justice Cushing or Judge Lowell and by one of the prosecutors and one of the defense lawyers. The questions were perfunctory: Do you own an interest in the Ulysses? Are you related to any of the parties or witnesses? Do you know any of the prisoners? Do you know Captain Lamb? Have you formed an opinion as to the guilt of the defendants? If any of the jurors answered in a way that disqualified himself from service, he would be excused and replaced with another juror who would be asked the same questions. Likely, none was excused.

The process took only a few minutes, then the jury was sworn to render a true verdict according to the evidence. Justice Cushing appointed one of the jurors to be the foreman. The remaining prospective jurors were free to leave, although several certainly kept their seats to watch. The empty seats in the gallery were quickly filled by persons hoping to see the trial, who had been waiting in the hall.

The clerk, Nathan Goodale, was seated in a desk at the front of the courtroom immediately adjacent to but below the judges. Goodale now rose from his desk and addressed the defendants: “John Salter, John Carnes, Stephen Bruce, John Bullock, and Edward Smith: Stand and raise your right hand. Face the jury and hear the indictment against you.” Defendants and their lawyers stood and faced the jury. The clerk then read the indictment. Goodale informed the jury that each of the prisoners at the bar had pleaded, “Not Guilty.” Goodale instructed Salter and the other defendants to be seated, and Justice Cushing indicated that the prosecution should proceed.

Read Part 1: Voyage of the Ulysses

Read Part 3: Trial of the Ulysses Mutiny

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